On September 5, 2018, in
Searcy v. R.J. Reynolds Tobacco Company, No. 13-15258, the Eleventh Circuit Court of Appeals affirmed a verdict
for the plaintiff in an
Engle progeny tobacco case. In
Engle progeny cases, plaintiffs may use the
Engle jury findings to establish the conduct elements for the “strict
liability, negligence, breach of express and implied warranty, fraudulent
concealment, and conspiracy to fraudulently conceal claims alleged by
the Engle class.”
Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 436 (Fla. 2013). This includes various findings that
may be read to the jury, including, but not limited to, a finding that
“that the defendants concealed or omitted material information not
otherwise known or available knowing that the material was false or misleading
or failed to disclose a material fact concerning the health effects or
addictive nature of smoking cigarettes or both.”
Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1276–77 (Fla. 2006). An
Engle progeny plaintiff who brings an intentional concealment claim, like the
plaintiff in
Searcy, must additionally show that the injured person relied on the misleading
information and that such reliance caused harm. The plaintiff in
Searcy, the daughter of the deceased smoker, attempted to do this at trial by relying
generally on the above-quoted general conduct finding in
Engle, but also on the more specific issue of the misleading marketing of low-tar/low-nicotine
cigarettes as being safer than other types of cigarettes on the market.
The defense argued on appeal that this violated due process because it
was never specifically established in
Engle that these specific statements were tortious. The Eleventh Circuit rejected
this argument, having already decided in
Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1091–93 (11th Cir. 2018), involving similar issues,
that due process is not violated by applying preclusive effect to the
Engle jury’s concealment findings in a subsequent trial.

The Eleventh Circuit additionally rejected the defendants’ challenge
to the punitive damages award on Seventh Amendment grounds. The defendants
claimed that allowing the jury to award punitive damages based on the
Engle findings required the jury to speculate as to what the specific conduct
was that formed the basis of the
Engle jury findings, in alleged violation of the Seventh Amendment’s Reexamination
Clause. The Eleventh Circuit concluded that because the jury was not required
to speculate about the
Engle jury findings when it awarded punitive damages, that defendants’
Seventh Amendment rights were not violated.

Finally, the Eleventh Circuit rejected the defendants’ argument that
the trial court erred by not reducing the plaintiff’s damages award
in accordance with Section 768.81, Florida Statutes, based on the deceased
smoker’s comparative negligence. Although the statute does not apply
to any action based on an intentional tort, the defendants’ claimed
that the trial court erred by not requiring the jury to apportion the
damages between the intentional torts and the negligence claims and then
apply any determined comparative negligence to the negligence award. The
Florida Supreme Court already resolved this issue in
Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017), concluding that where both intentional torts
and negligence claims are included in an
Engle progeny case, there is no reduction for a plaintiff’s comparative
negligence. The defense nevertheless maintained that the plaintiff had
waived the intentional tort exception to the comparative negligence statute,
arguing that at trial the Plaintiff took the position that comparative
fault would apply, only to abandon that position at the conclusion of
the trial. Leaving unresolved a question of whether state or federal law
applies to waiver issues, The Eleventh Circuit concluded that the record
was in any event clear that the plaintiff communicated her intent not
to not waive her right to unapportioned damages and offered a means whereby
the court could clarify to the jury that its decision to apportion fault
might not necessarily result in a reduction of the damages.

On September 6, 2018, in
Morris v. Muniz, No. SC16-931, the Florida Supreme Court quashed a Florida First DCA decision
which had affirmed the trial court’s dismissal of the plaintiff’s
medical negligence lawsuit based on a determination that the plaintiff’s
pre-suit medical expert was not qualified to provide a medical expert
opinion under section 766.102, Florida Statutes (2011). The Florida Supreme
Court determined that the proper standard of review in such a case, involving
undisputed facts regarding an expert’s qualifications, is de novo
review rather than the lesser abuse of discretion standard applied by
the First DCA. The Florida Supreme Court also determined that dismissal
of a medical negligence complaint for deficiencies in a pre-suit affidavit
is improper in the absence of demonstrated prejudice to the defendants.

Regarding the specific issue of the qualifications of the expert, who stated
in her affidavit that she was a board-certified obstetrician who had practiced
for over 30 years and had been chief of the OB-GYN department at a large
medical center, the defense had challenged the sufficiency of her qualifications
and her ability to have devoted professional time to the practice of medicine
during the three year period prior to the medical incident because she
was attending law school at the time. The Florida Supreme Court rejected
this argument, specifically noting that there is no requirement that the
expert be duly and regularly engaged in medical practice at the time the
medical expert opinion is offered. The Florida Supreme Court also rejected
another argument, that the expert was not qualified to offer an opinion
regarding medical support staff, noting that all the statute requires
is that an otherwise qualified expert have knowledge of the applicable
standard of care for nurses, nurse practitioners . . . or other medical
support staff,” without any specification of how a person must demonstrate
this knowledge. The Florida Supreme Court stated that even if the necessary
qualifications are not explicitly stated in a pre-suit affidavit, there
is no basis for dismissal if subsequent discovery establishes the qualifications.
However, the Court also concluded that a “fishing expedition”
deposition of the expert’s qualifications should not be allowed
if the pre-suit expert’s affidavit clearly establishes that the
expert is qualified under the statute and the defendant fails to present
any evidence to refute those qualifications.

Perhaps the Court’s most important holding was that the failure to
provide a satisfactory pre-suit affidavit should be treated as a discovery
violation and should be subject to the same general rule as discovery
violations, i.e., that dismissal of an action for a plaintiff’s
failure to comply with discovery, where the trial court fails to make
a finding of prejudice to the defendant, constitutes an abuse of discretion.
Quoting in part from
Kozel v, Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), the Court stated: [b]ecause dismissal
is the ultimate sanction in the adversarial system, particularly in the
medical malpractice realm after the statute of limitations has expired,
we remind trial courts that it should be reserved for those aggravating
circumstances in which a lesser sanction would fail to achieve a just
result. In those situations where the attorney, and not the client, is
responsible for the error, courts should consider the factors set forth in
Kozel in determining whether dismissal is warranted.” The Court rejected
the defendants’ argument that they were prejudiced because the plaintiff’s
actions delayed the resolution of the claim, noting that “delay
is not the type of prejudice contemplated by our case law.” The
Court concluded by approvingly quoting the observation made by the Third
DCA in in
Michael v. Med. Staffing Network, Inc., 947 So. 2d 614, 619 (Fla. 3d DCA 2007), that “there is an increasingly
disturbing trend of prospective defendants attempting to use the [chapter
766] statutory requirements as a sword against plaintiffs.”

On September 5, 2018, in
South Florida Fair and Palm Beach County Expositions, Inc. v. Joseph, No. 4D17-2816, the Florida Fourth DCA reversed an order of the trial
court denying the defendant fair association limited sovereign immunity
under Section 768,28(2). The issue arose in a premises liability negligence
lawsuit involving an incident at an annual fair administered by the defendant.
The trial court had concluded that despite the extensive statutory regulation
placed on fair associations by the state, the South Florida Fair was not
an instrumentality of the state entitled to limited sovereign immunity.
On appeal, the Fourth DCA observed that to be entitled to limited sovereign
immunity, the defendant need only establish that it was “mainly
acting” as an instrumentality or agency of the state. After reviewing
the statutory regulatory regime applicable to fair associations and noting
that there is no dispute that the Florida State Fair is entitled to limited
sovereign immunity protection, the Fourth DCA concluded that that there
was no principled basis to deny the same protection to a fair association.

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